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July 17, 2008

Depositions: When the Witness Answers a Question You Didn't Ask

Often during depositions, a witness will answer a question that's different than the one you asked. Lawyers with good deposition skills listen closely enough to a witness's answers to recognize this situation when it happens.

Example:

Q. Were you present for the meeting on February 22?

A. I wasn't at the office on February 22.

If you respond properly to this situation, you'll both take advantage of the witness's mistake (whether intentional or not) and regain control of the deposition.

What is the proper response? When the witness answers a question that's different than the one you asked, you have to figure out why (on the fly, of course). Among the possibilities are these:

Your question wasn't clear. If this is the case, rephrase the question and ask again.

Your question was clear but the witness heard it incorrectly. If you think this is what is going on, start over with the same question, then ask it again in a slightly different way to make sure the witness has understood.

Your question was clear and the witness heard it correctly, but the witness was confused about its meaning. In this case, back up and start over, changing your phrasing slightly, if possible, but continuing to aim for short, clear, unambigous questions. Continue in this manner until you and the witness return to the same page.

Your question was clear and the witness heard it and understood it, but the witness doesn't want to answer it. Rather than answering your question, the witness answered a slightly different question--one you didn't ask.

If you suspect that this last possibility is what has occurred, ask the question again while getting ready to dig in -- the witness's reaction means you're probably onto something. You've entered an area that is making the witness uncomfortable, and you need to find out why.

If you make an effort to respond properly when the witness answers the wrong question, you´re less likely to waste the time you put into developing and fine-tuning your deposition outline.

Comments

When deposing a non-English-speaking witness, it is conceivable that the witness’s answer to the question you did not ask is the result of a less than accurate language interpretation by the deposition interpreter.

To minimize the chances of witness’s testimony being lost in the translation, always use professional court-certified interpreters, if certification programs in the witness’s native language exist.

I am a mental health counselor, and I am interested in the coaching process from which an attorney might benefit. How can a lawyer use active listening skills that approach the emotions of a witness? When does such skill-building become manipulation of the human condition? What does the process look like when a mental health professional consults an attorney on matters of the heart? The intersection of humanity and justice is a topic of grand importance...